Securing transparency and trust

Mr Justice Peter Jackson was already a respected family judge when he issued the first judgment written in language simple enough for the young teenager in the case to understand the decision. Because the transcript also reproduced a smiley, it became known as ‘the emoji ruling’. This was a distraction but it helped publicise this new approach and Jackson was rightly praised for taking on board, in a practical way, the interests of the children involved in the justice system.

Jackson J’s comments at the Transparency Project debate last week, that judgments in family – especially children – cases were now more readily available, were also uncontroversial. Of course, there remain questions over what still seems a piecemeal approach to reporting. Some decisions are published, some aren’t. Professor Jo Delahunty QC, who chaired the debate, remarked semi-jocularly that the timely availability of judgments depended on whether the judges concerned were fast typists or used just one finger. It resonated with the audience and brought a touch of light-heartedness to the debate.

In terms of the openness of the family justice system, however, the issue isn’t just about the availability of judgments. In the main, the drive for greater transparency has been positive. Open court is now the default position to the extent that the press are permitted to attend as of right in most family cases, although not much may be reported without permission. This is where the misunderstanding starts. Opening the court’s doors doesn’t equate with unfettered reporting of what goes on inside the courtroom. But where there are reporting restrictions, it usually doesn’t take long for accusations of ‘secretive courts’ to be levelled at the whole system.

Perhaps, then, issues around identification and anonymisation should be looked at again, even in difficult cases, for the benefit of the many, Peter Jackson suggested. There were real concerns about identifying children to peers and neighbours, but on the other hand, he said, more information should perhaps be made available so the press could form a view.

Few children lawyers agreed. Martha Cover, chair of the Association of Lawyers for Children, mentioned an experiment her organisation carried out with the national youth advocacy programme. A group of techie-minded researchers looked at 21 anonymised rulings and managed to identify the parties in seven of them. Any more relaxation of the rules would go against the ‘do no more harm’ principle, she warned.

The risk of jigsaw identification shouldn’t be minimised, Jackson J responded, but the courts shouldn’t be guided solely by the ‘do no more harm’ principle. If one were only concerned with the interests of the parties in a case, ‘we would just shut the doors’. The problem wasn’t the red tops, he said, but local identification.

Balancing the interests in play in each case isn’t straightforward. For Jackson J, however, ‘there should be no airbrushing of abuse’. He was criticised, he said, for a recent judgment in which he referred to ‘nasty things’ the child in the case had gone through. Despite the dismay around the ruling, the child concerned was apparently happy about it: ‘it meant that, for the first time, someone had listened to what he had gone through’.

The prospect that some children would be sacrificed for the wider good, expressed in those terms, is unlikely to attract much support. But it needs to be put in context. Jackson J isn’t suggesting that children should be identified; he’s clearly concerned that children shouldn’t be ‘thrown to the wolves in order to burnish the reputation of the court system’.

Where the line is to be drawn between protecting children and serving the public interest is a question to be determined in the light of the circumstances in each individual case. Some judges occasionally take time to talk about the significance and implications of a case. More need to do so, and they need encouragement from the senior judiciary. It won’t stop all the accusations of secrecy overnight, but it’s the first step towards securing greater trust from the public.

Jean-Yves Gilg is editor in chief at Solicitors Journal

jean-yves.gilg@solicitorsjournal.co.uk | @jeanyvesgilg